The city of San Diego is on the hook for as much as $2.5 million in fines and upgrade costs for failing to properly enforce rules that require businesses and the city itself to make sure runoff is filtered before it drains into the ocean and the bay.
The city has until Nov. 1 to notify 142 private property owners that they must bring their stormwater management systems up to code.
If it misses the November deadline, the city could face daily fines of $10,000 a day. If the businesses fail to comply, each can be fined $100 a day up to $250,000.
These actions are detailed in a settlement reached last month between the city and the San Diego Regional Water Quality Control Board, which is tasked with creating and enforcing water quality goals.
And the city assures it is taking the settlement seriously.
The city tried to make clear to the water board, starting during the settlement process, that it was committed to fixing the deficiencies that led to the enforcement action, said Bill Harris, the city’s Transportation and Stormwater Department spokesman.
“In essence we were apologizing for the oversight and making sure that they knew we were committed to making the changes that we had to and taking care of the problem,” Harris said. “But also moving forward, putting the systems in place that would help us avoid these problems in the future.”
Stormwater system and permits
Before building anything in the city, developers have to apply for what’s known as an MS4 permit. That’s shorthand for a municipal separate storm sewer system permit. To get it, they have to show how stormwater will be collected and filtered in their new property. It’s the city’s responsibility to inspect construction sites to make sure developers are meeting those MS4 permit requirements.
Making sure those permits are in order from planning to completion is a responsibility shared among the city’s Transportation and Stormwater, Public Works and Development Services departments.
The water board came down on the city after a routine inspection of local construction sites found deficiencies in the design and installation of some stormwater runoff treatment systems.
To get your head around stormwater management, think of those water drains you see on the side of curbs or drainage grates in parking lots. Those inlets take water from rain, overzealous lawn sprinkling and other runoff into a system independent from the sewage system. The water flows from countless drains throughout the city to collection rivers and eventually into the ocean and bays.
The city is required to make sure those drains and inlets remove trash and pollutants from stormwater before it makes its way to the ocean and bays.
Chris Means, an environmental scientist with the water board’s Compliance Assurance Unit, said if the right stormwater management tools aren’t in place, rain will mean trouble.
“Urban runoff can contain pollutants like sediment, which can clog the gills and make it hard for fish and other critters in the stream to breathe,” Means said. Runoff also contains fertilizers, oils and heavy metals that foul local water.
San Diego Coastkeeper Program Director Travis Pritchard said polluted stormwater can make people sick. Advisories are often issued after it rains, warning swimmers to stay away from the ocean.
“The fecal indicator bacteria goes way up after a rain event. It’s not coming from the rain, it’s coming from everything that’s being washed from inland out to the rivers,” Pritchard said. “You talk to surfers, every single one of them has a story about, ‘Oh, I was stupid. It rained yesterday. I went surfing, and now I have an ear infection,’ or ‘Now I have a sore throat’ or ‘gastrointestinal distress,’ I guess would be the polite way of putting it.”
The final settlement between the city and the water board lists several issues it believes contributed to the city’s failures in enforcing the MS4 permit requirements. Those include sending out landscape inspectors to review stormwater requirements without the proper training.
“I think that there was a lack of adequate staffing,” Means said. He said staff may have been too overwhelmed and under-trained to recognize inadequate stormwater systems.
Some owners didn’t even know stormwater management systems were on their property, or how to take care of them. In response, the city made a fact sheet and FAQ, and sent them out to those owners.
Those private properties include apartment buildings, churches and supermarkets. Even SeaWorld San Diego’s Manta roller coaster and Rady Children’s Hospital are on the city’s list of properties that still aren’t in compliance.
SeaWorld did not respond to an inewsource request for comment prior to publication. However, Monday, after this story published, SeaWorld’s Communications Director David Koontz said in an email that the park complies with another permit, called a National Pollution Discharge Elimination Systems permit, “independent of, and separate from, the city’s permit.” A water board representative confirmed on Tuesday that SeaWorld is compliant with the NPDES permit.
The city began bringing some private developments into compliance with stormwater permit requirements after the first notice of violation. It wasn’t enough for the water board.
“By December 2012, they kind of caught all the low-hanging fruit,” Means said. “But they hadn’t made any headway in addressing their own public projects.”
Fines and punishment
The water board brought an enforcement action against the city in January 2013. That eventually led to the settlement approved last month.
Here’s how the fines and upgrades break down: A $949,634 fine will be levied on the city. Of that amount, $492,734 will go to a state account for cleanup projects. The remaining $456,900 will be forgiven if the city completes an “enhanced compliance action.”
That means the city must upgrade stormwater treatment systems in six San Diego parks, above what would otherwise be required. That project is estimated to cost almost $1.5 million and should be finished by August 2016.
Those projects boost stormwater quality and keep some money from the fine in the region, said Livia Borak, an attorney with the Coast Law Group, which has experience in environmental issues.
The waived fine money will only cover about a third of the cost of the upgrades at the six parks. An additional $1.25 million will come from a bond approved by the San Diego City Council in March 2013.
The water board found 306 private properties and 13 city-owned capital improvement projects had missing or ineffective stormwater management technology. Some of the permits go back as far as May 2003. Of those, 142 private and eight public projects — including five of the parks set for extra upgrades — have yet to be fixed. The city has to bring all projects into compliance by Aug. 15, 2016, or face up to $10,000 a day in fines.
The city first must notify MS4 permit holders by Nov. 1 that they are in violation. The owners then have 60 days to get up to code — unless the modifications are large enough to require city design approval. If the owners fail to comply, they face a penalty of $100 a day for up to $250,000.
Mandatory upgrades
The enforcement action taken by the water board focuses on completed projects. But in a separate audit in July, the board also found deficiencies in how the city enforces stormwater treatment requirements in projects under construction.
The audit said the city’s “construction management program structure, responsibilities, and staffing are inadequate” to implement the stormwater treatment requirements. It also called the city’s “inspection and enforcement processes … ineffective.” It listed 16 stormwater, construction and runoff management provisions that the city had violated.
Overall, Means at the water board says he thinks city officials have “done a lot to improve their program and their oversight of the projects. They’ve hired more people and engineers to review the plans and to make sure that they are inspected and operating when the project’s finished.”
Harris, the Transportation and Stormwater Department spokesman, said the city has a clear mandate from the mayor’s office to do whatever it takes to prevent stormwater pollution. The city is bringing on two engineers that will focus on private developments, reviewing projects and training staff on stormwater management systems.
This isn’t a problem unique to San Diego, Harris said. Regional water quality boards throughout the state are “paying a lot more attention to enforcement activities like this.”
San Diego Coastkeeper’s legal and policy director, Matt O’Malley, is also keeping a closer eye on stormwater systems after the enforcement action here.
“We may start looking at those other jurisdictions and see if this is going on because it kind of tipped us off to, wow, there are some things missing here,” O’Malley said. “Something’s broken and needs to be fixed.”
